Rogers v. Director of Revenue, State of Mo., 70974

• Decision Date: 17 June 1997
• Docket Number: No. 70974,70974
• Parties: Christopher Lee ROGERS, Petitioner-Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Respondent-Appellant.
• Court: Missouri Court of Appeals

Page 475

947 S.W.2d 475

Christopher Lee ROGERS, Petitioner-Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Respondent-Appellant.

No. 70974.

Missouri Court of Appeals,

Eastern District,

Division Four.

June 17, 1997.

Klutho, Cody & Kilo, P.C., John P. Brown, & Corey M. Lavinsky, St. Louis, for respondent-appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Julia N. Hosmer, Sp. Asst. Atty. Gen., Mo. Dept. of Revenue, Jefferson City, for petitioner-respondent.

KAROHL, Judge.

This is an appeal by the director of revenue from a judgment restoring driving privileges for Christopher Lee Rogers (Rogers). The appeal follows a trial de novo after an administrative suspension of Rogers' driving privileges under § 302.500 et. seq. RSMo 1994. The sole issue in this case is whether there was evidence to suggest findings that there was probable cause to stop Rogers and that his blood alcohol content exceeded 0.10% by weight. We conclude the evidence was sufficient, therefore, we reverse.

On January 18, 1996, at approximately 1:39 a.m., Sergeant Lenhard of the City of Bridgeton Police Department responded to the scene of a three-car accident. He approached one of the drivers of the vehicles, Rogers, who indicated that he had been involved in the accident. Sergeant Lenhard had never previously talked to Rogers. Rogers said his vehicle had collided with an unlit motor vehicle that had stopped in the middle of the road. Sergeant Lenhard noticed Rogers was injured as a result of the accident. Rogers sustained a bump on the head. Sergeant Lenhard also observed that Rogers had slurred speech, dilated pupils, bloodshot eyes, a moderate smell of an intoxicating beverage on his breath, and "swayed" as he walked. Sergeant Lenhard told Rogers that he thought that Rogers was under the influence of alcohol. He asked Rogers to perform some field sobriety tests. Based on Rogers' performance of these tests, as well as the various conditions noted previously, Sergeant Lenhard arrested Rogers for driving while intoxicated, a violation of City of Bridgeton Ordinance 91-26.

Sergeant Lenhard first transported Rogers to the Bridgeton city jail, where the breath analysis machine was not working properly. Sergeant Lenhard then took Rogers to the St. Ann city jail, where he was permitted to use St. Ann's breath analysis machine. The printout of the test result was a blood alcohol content of 0.22% of weight. Sergeant Lenhard did not have his testing permit with him and failed to get the number from the Bridgeton police department, so he did not include the number or expiration date in his report.

Sergeant Lenhard had no personal knowledge as to whether the St. Ann machine was working properly or was in its proper radio frequency interference certified location. He had never used the St. Ann machine before. Sergeant Lenhard was given information however that stated the machine was functioning properly at the time of the test. A maintenance report on the machine had been prepared by a St. Ann police officer within a thirty-five day period prior to Rogers' test. The test confirmed the machine was in good order. The report was admitted into evidence at the trial court without objection.

The director initially argues that there was sufficient proof of probable cause to arrest Rogers. Suspension or revocation of driving privileges, pursuant to § 302.505.1 RSMo 1994 requires a two-part showing by the director of revenue: (1) the driver was arrested on probable cause that he or she was driving in violation of an alcohol-related offense, and (2) the driver had been driving at a time his blood alcohol content was at least 0.10% by weight. Oughton v. Director of Revenue, 916 S.W.2d 462, 464 (Mo.App. E.D.1996). These showings must be made by a preponderance of the evidence. Id. Our standard of review is provided by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The decision of the trial court will be affirmed unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Id.

Probable cause exists when circumstances and facts would warrant a person of reasonable caution to believe that an offense has been committed. Oughton, 916 S.W.2d at 464. The determination of whether a police officer has probable cause to make an arrest must be made in relation to circumstances as they appeared to a prudent, cautious, and trained police officer. Id. "The type of facts needed to determine probable cause are found in the definition of the substantive offense and in case law dealing with the sufficiency of the evidence to convict of the substantive offense." Wilcox v. Director of Revenue, 842 S.W.2d 240, 242 (Mo.App. W.D.1992). "To form a belief amounting to probable cause, the arresting officer need not possess all the information concerning the offense and the arrestee's participation in it." Wilcox, 842 S.W.2d at 243. Circumstantial evidence may be relied upon when driving is not actually observed. Id. Nor is it necessary for an officer to actually observe a person driving in order to have probable cause to arrest for driving while intoxicated. Chinnery v. Director of Revenue, 885 S.W.2d 50, 51 (Mo.App. W.D.1994).

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